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TRIG ATIVRNICY GECNERAI. 

AURTIN. TlZXAR 76711 

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A1MRIIEY OICNILPAL May 18, 1977 

The Honorable John C. Knorpp 

Donley County Attorney 

P. 0. Drawer 3 

Clarendon, Texas 79226 

Opinion No. H-992 

Re: Appointment of county 

commissioner's wife as 

deputy tax assessorcollector for the county.' 

Dear Mr. Knorpp: 

You advise that in Donley County the commissioners 

court sets and approves the monthly salaries of all officials, 

including that of the deputy tax assessor-collector. The 

Sheriff-Tax Assessor-Collector of the county, who hires and 

fires his own deputies, has hired the wife of a county commissioner as deputy tax assessor-collector. You observe 

that the commissioner would normally have a community 

property interest in his wife's county salary, and then 

'ask: 

May the Sheriff-Tax Assessor-Collector appoint 

as deputy tax assessor-collector the wife of 

one of the County Commissioners? 

If your answer is in the affirmative, will 

a written agreement as to the salary of 

the deputy as being the wife's and the 

husband having no interest in it.suffice? 

In discussing the nepotism statute, we said in Attorney 

General Opinion H-697 (1975): 

Article 5996a generally provides that no 

officer of a county or member of a county 

board or court may appoint, vote for, or 

confirm the appointment to any office or 

position compensated by publiefunds of any 

person related to the person so appointing 

or so voting or to another member of the 

board or court within the second degree by 

P. 4121 
. . 

The Honorable John C. Knorpp - page 2 (H-993) 

affinity or the third degree of consanguinity. 

See Letter Advisory No. 67 (1973). County - 

commissioners are included. V.T.C.S., art. 

5996b. 

This provision is not violated, however, 

if a relative of a member of a governing body 

is hired for a position authorized by that 

body, when the governing body does not exercise 

control over the person to be selected. See 

Attorney General Letter Advisory No. 79 (T473) 

and authorities cited therein. 

Where the nepotism statute is applicable, the wife of 

an officer to whom the prohibition applies is considered 

to be related to him within the second degree of affinity. 

Attorney General Opinions V-785 (1949); V-359 (1947); O-4973 

(1942); O-31 (1939); Attorney General Letters Advisory Nos. 

79 (1974); 68 (1973). But here, absent "trading" or some 

other illegal evasion of the law, article 5996a would not 

apply. - See V.T.C.S. art. 5996c. 

The commissioners court of a county and its members are 

statutorily prohibited from attempting to influence the 

appointment of any person as a deputy, assistant or clerk 

in another office. V.T.C.S. art. 3902; Attorney General 

Opinion H-697 (1975) 

(Tex. Civ. App. __ ,,,tEdw $i~'~~~:$i. 66T~;~m2~ef:~er 

the commissioners court nor individual commissioners'can 

legally prevent the sheriff from hiring the wife of a 

commissioner if she is otherwise eligible for the position, 

and article 5996a would not apply. Attorney General Letter 

Advisory Nos. 116, 115 (1975). 

The community property interest of a commissioner in 

the county-paid salary of his wife was not addressed as an 

issue in any of the opinions cited above, however. 

Article 2340, V.T.C.S., reads: 

Before entering upon the duties of their 

office, the county judge and each commissioner 

shall take the official oath, and shall also 

take a written oath that he wiii-nn -- 

directly or - indirectly lnc'restedin - G 

P. 4122 
. . 

. 

The Honorable John C. Knorpp - page 3 (H-993) 

'contract with, or claim against, the county 

in which he resnes, except such Grants 

as may issue to him as fees of office . . . . 

(Emphasis added). 

In Attorney General Opinion H-624 (1975), we decided 

that article 2340 prohibited a county from entering a contract 

with a farmer's cooperative in which a commissioner owned a 

small share, saying: 

While the interest involved here appears 

so negligible as to be insignificant, the 

controlling statute is cast in absolute 

terms and the public policy of the matter 

is clear: members of a commissioners court 

must avoid all situations which result in 

their personal pecuniary gain at the expense 

of the county. __ See Attorney General Opinion 

H-329 (1974). 

The salary earned by a spouse during marriage is community 

property. Family Code 9 5.01. Thus, the husband in this 

case would normally have a community interest in his wife's 

salary. Although married couples may convert community 

property into separate property if they comply with the 

relevant constitutional and statutory provisions, Hille 

Hilley, 342 S.W.Zd 565 (Tex. 1961), we do not belida?the 

husband may in this manner free himself of all interest in 

his wife's salary. 

(a) (2); 5.42; 

See -, Family Code 5s 3.59; 4.02; 5.22 

5.61; Attorney General Opinions II-329 (1974); 

WW-1406 (1962). Thus, whether the wife's salary remains community property or becomes separate property, the husband has 

a direct or indirect interest in it, in violation of his oath 

under article 2340. 

We believe the wife may continue to serve if she renounces 

her salary, thereby preventing her husband from having an 

interest in her salary claim against the county. See Attorney 

General Opinions H-329 (1974) and H-6 (1973). If hechooses 

to resign from the commissioners court, she may thereafter 

serve as deputy tax assessor-collector and receive her 

salary. If the husband remains on the commissioners court 

and his wife claims salary from the county,,his interest in 

that claim will cause him to violate his article 2340 oath and 

P. 4123 
- . 

The Honorable John C. Knorpp - page 4 15-993) 

render her employment contract null and void as against public 

policy. Bexar County v. Wentworth, 378 S.W.Zd 126 (Tex. Civ. 

APP. -- San Antonio 19=, writ ref'd n.r.e.1; Starr Count 

Guerra, 297 S.W.Zd 379 (Tex. Civ. App. -- San Antonio --l&,%0 

writ)t Attorney General Opinion,H-624 (1975). 

SUMMARY 

The nepotism statute does not bar a county 

from employing as deputy tax assessorcollector the wife of one of its county 

commissioners, where the commissioners have 

no control of'the hiring or firing of such 

deputies. The husband has an interest in his 

wife's salary claim against the county, which 

causes him to violate the oath required by 

article 2340, V.T.C.S., and renders her 

employment contract null and void. 

Very truly yours, 

APPROVED: 

Attorney General of Texas 

DAVID M. KENDALL, First Assistant 

Opinion Committee 

P. 4124